Treason Carries The Death Penalty & Trump Is Unquestionably Guilty-- But Is Execution A Real Option?

Writing for the New Yorker this week Jeannie Gersen asked a perfectly reasonable-- reasonable in light of the 1/6 coup attempt-- question: Did Trump and His Supporters Commit Treason? She began by introducing U.C. Davis law professor and "treason scholar," Carlton F.W. Larson as someone who has "has swatted away loose treason accusations" leveled against Trump-- until now. Gerson explained that "the Constitution defines treason as one of two distinct, specific acts: 'levying War' against the United States or 'adhering to their Enemies, giving them Aid and Comfort.' Colluding with Russia, a foreign adversary but not an enemy, is not treason, nor is bribing Ukraine to investigate a political rival. Ordering the military to abandon Kurdish allies in Syria, effectively strengthening ISIS, is not treason, either-- though that is getting warmer. During Trump’s Presidency, Larson told me, his colleagues teased him by asking, 'Is it treason yet?' He always said no. But the insurrection of January 6th changed his answer, at least with regard to Trump’s followers who attacked the Capitol in an attempt to stop Congress’s certification of the election. 'It’s very clear that would have been seen as levying war,' he said." That opens Trump up for a death penalty.

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Larson wrote in his book On Treason: A Citizen’s Guide to the Law, from 2020, that the Framers “had a very specific image in mind-- men gathering with guns, forming an army, and marching on the seat of government.” Few events in American history, if any, have matched that description as clearly as the insurrection of January 6th, which, court documents suggest, was planned by milita members who may have intended to capture elected officials... The Supreme Court [has] held that a mere conspiracy to levy war does not count as actually levying war... [and] Supreme Court Justice Robert Grier, presiding at trial (as Justices did in those days), held that “levying war” had to involve an intent to overthrow the government or hinder the execution of law.

Southern secessionists who waged war against the United States were treasonous under any reading of the Treason Clause’s “levying war” standard...

Since the Capitol insurrection, there has been little talk of treason charges. Carlton Larson suggested that this was because “everybody now tends to think of treason as mostly aiding foreign enemies.” In his book On Treason, he even states that “levying war is arguably archaic, of interest only to historians,” and that, in the twenty-first century, “armed rebellions to overthrow the government are simply not going to happen.” But, to the Framers, such an insurrection was a paradigmatic case of treason. The founding-era Chief Justice John Marshall held in the treason trial of Aaron Burr that levying war entails “the employment of actual force” by “a warlike assemblage, carrying the appearance of force, and in a situation to practice hostility.” If some of those who attacked the Capitol assembled in order to incapacitate Congress-- perhaps even by kidnapping or killing lawmakers-- then their actions could be construed as an attempt to overthrow the government, and federal prosecutors could plausibly consider treason charges. As Larson put it, “At some point, you have to say, if that’s not levying war against the United States, then what on earth is?”

Last Tuesday, Mitch McConnell, who is now the Senate Minority Leader, said that the attackers “tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like,” offering a narrower purpose than government overthrow. Investigators examining the emerging evidence on the scope of the plot might disagree. Federal law also makes it a separate felony for anyone who owes allegiance to the U.S. and knows of the commission of any treason to conceal it or not tell authorities. That vastly widens the net of those who could potentially be charged, including friends, acquaintances, and co-workers of the attackers. (Since the attack, many such individuals have, in fact, come forward to give information to law enforcement.)

The Treason Clause’s strict evidentiary rule of two witnesses to the act makes it exceedingly difficult to convict anyone of treason, even with so much conduct captured on video. But a treason case against Trump himself might conceivably be built, if prosecutors could establish that he knew in advance that his supporters planned to violently assault the Capitol, rather than peacefully protest; that he intended his speech urging them to “fight harder” to spur them to attack Congress imminently; and that he purposely didn’t do anything to stop the insurrection while it was unfolding-- or, worse, intentionally contributed to a security failure that led to the breach. Then Trump would have engaged in treason along with supporters who attempted, in his name, to overthrow the U.S. government. At a minimum, it appears that Trump, along with top government officials, was aware that his followers were planning acts of violence. Trump did, however, say, in the midst of his incendiary speech, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

Short of treason, a related federal law prohibiting rebellion or insurrectionstates that a person who incites “any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto,” has committed a serious felony and is disqualified from holding federal office. This description is similar to the current article of impeachment against Trump: “for inciting violence against the Government of the United States.” If two-thirds of senators vote to convict Trump, a majority of the Senate could then vote to bar him from future federal office. But a Senate conviction requires the votes of at least seventeen Republicans and, so far, looks unlikely. A federal criminal conviction for inciting rebellion or insurrection may offer an alternative route to disqualifying Trump from holding office.

For the time being, the government has indicted more than a hundred and fifty people for crimes related to the insurrection, including unlawful entry, disorderly conduct, theft, destruction of property, firearms offenses, assault on police, conspiracy, obstruction of an official proceeding, obstruction of justice, and even curfew violation. Ongoing investigations will likely produce more indictments. In addition to potential homicide and terrorism charges, prosecutors have pledged to pursue the charge of “seditious conspiracy.” That crime overlaps with but covers more than treason; federal law defines it as any conspiracy “to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States.”

While federal prosecutors could charge some of the leaders of the riot with treason, seditious conspiracy would be far easier to prove. It is clear that the rioters’ goal was, at a minimum, to delay Congress’s legally mandated counting of electoral votes. Prosecutors would need to prove that two or more people had agreed to undertake the seditious conduct, but, with respect to the rioters who were explicit about their aims and coördinated their actions, the evidence may well be sufficient, particularly given the violent result. More evidence might even enable charges against individuals who conspired to attack the Capitol but didn’t take part in the events. Some of those individuals might be elected officials. Representative Mikie Sherrill, a Democrat of New Jersey, has alleged that unnamed members of Congress “had groups coming through the Capitol that I saw on January 5th, a reconnaissance for the next day.” Soon afterward, the U.S. Government Accountability Office and the Capitol Police opened investigations into what roles members might have played in the siege.

If evidence were to emerge that members of Congress intentionally aided or incited the attack, they may face criminal consequences. It’s more likely, however, that Republicans who amplified Trump’s election-fraud lies will be sanctioned by their colleagues. Seven Democratic senators have filed an ethics complaint against the Republican Senators Ted Cruz, of Texas, and Josh Hawley, of Missouri, who led the effort to overturn the election in Congress. Representative Cori Bush, a Democrat of Missouri, has introduced a House resolution to investigate and potentially expel members of Congress who challenged states’ electoral votes. Bush said, in a tweet, that they “incited this domestic terror attack through their attempts to overturn the election.” Mitch McConnell may agree. He has pointedly acknowledged that the mob was “provoked by the President and other powerful people,” implying that fellow-lawmakers might bear responsibility. But, whatever moral condemnation or political remedy is appropriate, criminal charges cannot be brought against congresspeople such as Hawley and Cruz solely for using a legal process to challenge electoral votes in Congress. It is unlikely that any Republican politician thought they’d succeed in overturning the election, and it may be hard to distinguish their moves in Congress, at least legally, from a few Democrats’ challenges to states’ electoral votes in 2001, 2005, and 2017.

Even if Congress doesn’t censure or expel any of its members, the Senate declines to convict Trump, and federal prosecutors decline to bring charges against any of them, Trump and lawmakers who tried to overturn the election could still be held accountable through Section 3 of the Fourteenth Amendment, the same provision that was intended to prevent former Confederates from holding office. If Trump and the officials tried to run for office again, a lawsuit could claim that they “engaged in insurrection or rebellion” within the meaning of the Fourteenth Amendment, and, if the evidence bears it out, some could be disqualified from holding office. But, apart from any of these remotely possible legal remedies, Republicans who helped foment the attack are facing political repercussions: in the weeks since the riot, Hawley has had a fund-raiser and a book contract cancelled, and Missouri’s two biggest newspapers have called for his resignation. But, alas, in our divided country, Republican officials who denounced the insurrection or voted to impeach Trump may also face the ire of many Republican voters.

And that brings us to the report this morning in the Washington Post by Devlin Barrett, Spencer Hsu and Aaron Davis, FBI Finds Evidence Detailing Coordination Of Assault On U.S. Capitol. They reported that Trumpists all over the country had designated code-named meet-up points for caravans headed for the Capitol on January 5, the day before the attempted coup. "That same day, FBI personnel in Norfolk were increasingly alarmed by the online conversations they were seeing, including warlike talk around the convoys headed to the nation’s capital. One map posted online described the rally points, declaring them a 'MAGA Cavalry To Connect Patriot Caravans to StopTheSteal in D.C.' Another map showed the U.S. Congress, indicating tunnels connecting different parts of the complex. The map was headlined, 'CREATE PERIMETER,' according to the FBI report, which was reviewed by the Washington Post. 'Be ready to fight. Congress needs to hear glass breaking, doors being kicked in,' read one posting, according to the report. FBI agents around the country are working to unravel the various motives, relationships, goals and actions of the hundreds of Trump supporters who stormed the U.S. Capitol on Jan. 6. Some inside the bureau have described the Capitol riot investigation as their biggest case since the Sept. 11, 2001, attacks, and a top priority of the agents’ work is to determine the extent to which that violence and chaos was preplanned and coordinated."

So now they have to make the distinction between gathering for a political rally and gathering for an armed assault against the seat of American government. The FBI will have to decide "who played key roles in committing or coordinating the violence" and who was just protesting. Proud Boys and Oath Keepers, for example, were organized and acting in concert, moving forward and chanting "under the direction of different leaders before charging at startled police staffing a pedestrian gate, all in the matter of a few minutes."

An indictment Friday night charged a member of the Proud Boys, Dominic Pezzola, 43, of Rochester, N.Y., with conspiracy, saying his actions showed “planning, determination, and coordination.” Another alleged member of the Proud Boys, William Pepe, 31, of Beacon, N.Y., also was charged with conspiracy.

Minutes before the crowd surge, at 12:45 p.m., police received the first report of a pipe bomb behind the Republican National Committee headquarters at the opposite, southeast side of the U.S. Capitol campus. The device and another discovered shortly afterward at Democratic National Committee headquarters included end caps, wiring, timers and explosive powder, investigators have said.

Some law enforcement officials have suggested the pipe bombs may have been a deliberate distraction meant to siphon law enforcement away from the Capitol building at the crucial moment.

The FBI is also trying to determine how many people went to Washington seeking to engage in violence, even if they weren’t part of any formal organization. Some of those in the Louisville caravan said they were animated by the belief that the election was stolen, according to interviews they gave to the Louisville Courier-Journal.

Much of the discussion of potential violence occurred at TheDonald.win, where Trump’s supporters talked about the upcoming rally, sometimes in graphic terms, according to people familiar with the FBI investigation who spoke on the condition of anonymity to discuss an open matter.

After the riot, a statement posted on the website said moderators “had been struggling for some time to address a flood of racist and violent content that appeared to be coming primarily from a small group of extremists who were often brigading from other sites,” leading to inquiries from the FBI.

One of the comments cited in the FBI memo declared Trump supporters should go to Washington and get “violent. Stop calling this a march, or rally, or a protest. Go there ready for war. We get our President or we die.”

Some had been preparing for conflict for weeks.

...“Historically, within the right-wing extremist movements, leadership has produced rhetoric to spin up their members, increase radicalization and recruitment, and then stand back and let small cells or individual lone offenders follow through on that rhetoric with violent action,” said Thomas O’Connor, a former FBI agent who spent decades investigating domestic terrorists. “Domestic terrorism actually developed the leaderless resistance concept, taking the potential blame away from the leadership and putting it down into small groups or individuals, and I think that is what you’re starting to see here.”

...Colin Clarke, a domestic terrorism expert at the Soufan Group, said the Jan. 6 attack represents a “proof of concept” for dangerous extremists.

“They talk about things like this in a lot of their propaganda, and the fact that the Capitol Police allowed this to happen, you can call it a security breach, or intelligence failure, but these people do not look at this as a failure, they look at it as an overwhelming success, and one that will inspire others for years.”